VICTIM IMPACT EVIDENCE IN CAPITAL CASES: REGULATING …

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VICTIM IMPACT EVIDENCE IN CAPITAL CASES:

REGULATING THE ADMISSIBILITY OF

PHOTOGRAPHS AND VIDEOS IN THE PAYNE ERA

ALEXANDER H. UPDEGROVE*

ABSTRACT

In Booth v. Maryland, the U.S. Supreme Court prohibited victims’

loved ones from presenting victim impact evidence during capital sentencing

hearings. Following this, the Court extended Booth’s ruling in South

Carolina v. Gathers to similarly prevent prosecutors from presenting victim

impact evidence at capital trials. Just two years later, however, a change in

the Court’s composition led to a reversal now permitting states to allow

victim impact evidence in capital cases. Since then, the Court has declined

to provide further guidance on the admissibility of victim impact evidence

despite the introduction of extensive slideshows and videos memorializing

victims set to melancholy music. This Article examines state court cases

from the fifty states plus cases from federal courts to understand the factors

that contribute to the (in)admissibility of victim impact evidence. The Article

concludes by proposing model language that states can use to enact

legislation regulating the use of photographs and videos as victim impact

evidence in capital cases.

INTRODUCTION

In Payne v. Tennessee, the U.S. Supreme Court overruled two previous

decisions to find victim impact evidence admissible in capital trials.1 This

ruling proved controversial at the time for disregarding the doctrine of stare

decisis,2 and has only grown more divisive as technological advancements have

* Alexander H. Updegrove is an Assistant Professor in the Department of Criminal Justice

at the University of North Texas. His scholarship focuses on the death penalty, victim services and

victimology, race, and immigration issues. This Article is dedicated to Rolando V. del Carmen and

Michael S. Vaughn.

1. See Payne v. Tennessee, 501 U.S. 808 (1991) (overruling Booth v. Maryland, 482 U.S.

496 (1987) and South Carolina v. Gathers, 490 U.S. 805 (1989)).

2. See id. at 844 (Marshall, J., dissenting) (“Power, not reason, is the new currency of this

Court’s decision[ ]making. Four Terms ago, a five-Justice majority of this Court held that ‘victim

impact’ evidence of the type at issue in this case could not constitutionally be introduced during the

penalty phase of a capital trial. Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L.Ed.2d 440

(1987). By another 5–4 vote, a majority of this Court rebuffed an attack upon this ruling just two

168 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 34

ushered in new methods for presenting victim impact evidence.3 Although

Payne permitted states to provide victims with a voice during sentencing at

capital trials, it failed to consider what form that voice should (or should not)

take. Similarly, Payne provided no guidance for determining when too much

victim impact evidence had been presented.4 Absent instruction from the Court,

state courts have generally held that victims can address the court through any

format they choose, and demonstrated a reluctance to curb the amount of victim

impact evidence presented.5 The wide latitude Payne affords states is

problematic because the Supreme Court did not anticipate how far the

boundaries of admissible victim impact evidence would expand in the decades

following its decision.6 Despite the troubling implications raised by newer

Terms ago. South Carolina v. Gathers, 490 U.S. 805, 109 S. Ct. 2207, 104 L.Ed.2d 876 (1989).

Nevertheless, having expressly invited respondent to renew the attack, 498 U.S. 1076, 111 S.Ct.

1031, 112 L.Ed.2d 1032 (1991), today’s majority overrules Booth and Gathers and credits the

dissenting views expressed in those cases. Neither the law nor the facts supporting Booth and

Gathers underwent any change in the last four years. Only the personnel of this Court did.”); see

also id. at 856 (Stevens, J., dissenting) (“Our cases provide no support whatsoever for the majority’s

conclusion that the prosecutor may introduce evidence that sheds no light on the defendant’s guilt

or moral culpability, and thus serves no purpose other than to encourage jurors to decide in favor of

death rather than life on the basis of their emotions rather than their reason.”).

3. See Erica A. Schroeder, Note, Sounds of Prejudice: Background Music During Victim

Impact Statements, 58 U. KAN. L. REV. 473, 474 (2010) (“The current trend of advancing

technology has made the use of electronic media during VIS a widespread phenomenon. In addition

to live testimony from family, more prosecutors today are using technology, such as PowerPoint

presentations or videos, to visually present the lives of deceased victims. Many of these

presentations are set to emotional background music—an irrelevant and highly prejudicial addition

to otherwise admissible VIS. Allowing such music during VIS causes prejudicial emotional

decisions resulting in a fundamentally unfair sentencing, and courts should no longer allow music

during VIS.”) (emphasis added); see also Alicia N. Harden, Note, Drawing the Line at Pushing

“Play”: Barring Video Montages as Victim Impact Evidence at Capital Sentencing Trials, 99 KY.

L.J. 845, 847 (2010) (“Recent technological developments have prompted a new type of victim

impact evidence: the victim impact video, or video montage.”); Regina Austin, Documentation,

Documentary, and the Law: What Should Be Made of Victim Impact Videos?, 31 CARDOZO L. REV.

979, 984 (2010) (“The admission of victim impact videos is concededly a charged issue.”).

4. See John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88

CORNELL L. REV. 257, 267 (2003) (“[T]he question of how much and what kind of VIE is

permissible remains unanswered.”).

5. See id. at 278 (“Payne is not going away. VIE is politically popular, and it is difficult to

imagine any state or federal court significantly restricting its admissibility. Furthermore, VIE is

largely unregulated.”).

6. See id. at 271–72 (“In addition to testimony from witnesses, courts have allowed the

prosecution to present poems, videotapes, pre-death photographs, and handcrafted items made by

the victim.”) (footnotes omitted); see also Christine M. Kennedy, Note, Victim Impact Videos: The

New-Wave of Evidence in Capital Sentencing Hearings, 26 QUINNIPIAC L. REV. 1069, 1077 (2008)

(“Regarding the forms that victim impact evidence may take, courts have allowed photographs,

diaries, letters, and other physical evidence that convey various aspects of the victim’s

uniqueness.”).

2020] VICTIM IMPACT EVIDENCE IN CAPITAL CASES 169

formats, such as videos7 and accompanying music,8 the Supreme Court has

declined opportunities for further clarification.9

This Article begins by exploring the Supreme Court’s rationale for

limiting the use of victim impact evidence in capital trials in Booth and Gathers.

Following this, the Payne Court’s reasons for reversing its earlier decisions are

examined. This Article then briefly reviews state court cases involving the

presentation of atypical victim impact evidence, such as poems and recorded

phone audio, before honing in on state court cases involving victim impact

evidence that contains photographs or videos of victims. Special attention is

paid to whether photograph or video presentations included accompanying

music. Next, this Article details criticisms leveled by courts and legal scholars

against victim impact evidence containing photographs or videos of victims.

Finally, this Article concludes by suggesting model language that states can

incorporate into their statutes to balance the constitutional right of the defendant

to a punishment that is neither cruel nor unusual with victims’ right to be

heard.10

I. SUPREME COURT CASES ON VICTIM IMPACT STATEMENTS

A. Booth v. Maryland (1987)

In Booth v. Maryland,11 the U.S. Supreme Court concluded that the victim

impact statement submitted during the sentencing hearing of the capital trial

served dual purposes. The first purpose was to inform the court about the

victim’s uniqueness and the harm suffered by the victim’s loved ones as a result

of the crime. The second purpose was to describe how the victim’s loved ones

felt about the crime itself and the defendant on trial.12 The Court concluded that

neither purpose passed constitutional muster. Specifically, the Court found that

the victim impact statement improperly redirected the focus away from the

defendant’s “blameworthiness” for the crime by introducing evidence of the

7. See Kennedy, supra note 6, at 1071 (“The obvious emotional appeal of victim impact

videos creates new challenges for courts that must determine when the evidence at a capital

sentencing hearing is too prejudicial to be heard.”); see also Harden, supra note 3, at 879 (“Victim

impact videos . . . are a ‘far cry’ from what the Payne majority contemplated . . . .”).

8. See Schroeder, supra note 3; see also Kennedy, supra note 6, at 1092 (“The

accompaniment of a musical soundtrack in some victim impact videos introduces a new element of

which some courts have made note.”).

9. See Kelly v. California, 555 U.S. 1020 (2008); see also Harden, supra note 3, at 875

(“Since Payne, the Supreme Court has not ruled further on the acceptable scope of victim impact

evidence.”).

10. See U.S. CONST. amend. VIII.

11. Booth v. Maryland, 482 U.S. 496 (1987).

12. See id. at 502 (“The VIS in this case provided the jury with two types of information.

First, it described the personal characteristics of the victims and the emotional impact of the crimes

on the family. Second, it set forth the family members’ opinions and characterizations of the crimes

and the defendant.”).


victim’s esteemed status in the community.13 Additionally, allowing the

victim’s loved ones to express their opinions about the crime and defendant

unnecessarily increases the risk that jurors will return a sentence dictated by

emotion rather than facts, thereby becoming a cruel and unusual punishment.14

Justice White was joined in his dissent by Chief Justice Rehnquist and

Justices O’Connor and Scalia. White’s primary dispute with the majority

opinion was that he believed prosecutors should be allowed to introduce

evidence of the crime’s harm in order to nullify any leniency jurors would afford

the defendant based on mitigating factors presented by the defense.15 Thus,

White argued that the defendant should be held responsible for the full extent

of harm caused by their actions regardless of any mitigating circumstances that

might explain how the defendant came to commit that offense (e.g., a history of

poor mental health and childhood abuse).16

Justice Scalia also dissented and was joined by Chief Justice Rehnquist

and Justices White and O’Connor. Scalia argued that charging decisions are not

based on how accountable the defendant is for their actions, but rather the intent

behind those actions.17 As a result, a defendant who intended to commit a

heinous crime should be held fully responsible for that crime regardless of any

circumstances that may have influenced those intentions, such as poor mental

health or a lengthy history of childhood neglect and abuse. Scalia also echoed

White’s dissent by arguing that victim impact evidence is necessary to limit the

influence of mitigating evidence on the jury.18

13. See id. at 504.

14. See id. at 508 (“One can understand the grief and anger of the family caused by the brutal

murders in this case, and there is no doubt that jurors generally are aware of these feelings. But the

formal presentation of this information by the State can serve no other purpose than to inflame the

jury and divert it from deciding the case on the relevant evidence concerning the crime and the

defendant.”); see also U.S. CONST. amend. VIII.

15. See Booth, 482 U.S. at 517 (White, J., dissenting) (“I would think that victim impact

statements are particularly appropriate evidence in capital sentencing hearings: the State has a

legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put

in . . . .”).

16. See id. at 518 (“At bottom, the Court’s view seems to be that it is somehow unfair to

confront a defendant with an account of the loss his deliberate act has caused the victim’s family

and society.”).

17. See id. at 519 (Scalia, J., dissenting) (“The Court’s opinion does not explain why a

defendant’s eligibility for the death sentence can (and always does) turn upon considerations not

relevant to his moral guilt. If a bank robber aims his gun at a guard, pulls the trigger, and kills his

target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt in both

cases is identical, but his responsibility in the former is greater.”).

18. See id. at 520–21 (“To require, as we have, that all mitigating factors which render

capital punishment a harsh penalty in the particular case be placed before the sentencing authority,

while simultaneously requiring, as we do today, that evidence of much of the human suffering the

defendant has inflicted be suppressed, is in effect to prescribe a debate on the appropriateness of the

capital penalty with one side muted. If that penalty is constitutional, as we have repeatedly said it

is, it seems to me not remotely unconstitutional to permit both the pros and the cons in the particular

case to be heard.”).


B. South Carolina v. Gathers (1989)

In South Carolina v. Gathers, the U.S. Supreme Court extended its Booth

decision by ruling prosecutors, as well as victims, violate defendants’ Eighth

Amendment right to a punishment that is neither cruel nor unusual when they

emphasize the innocence and esteemed social standing of victims during capital

trials.19 In Booth, the Court suggested that victim impact evidence might be

relevant to sentence determinations under a narrow set of circumstances.20

Subsequently, the Gathers Court ruled that the mere presence of victims’

belongings at the crime scene does not automatically render those belongings

relevant as victim impact evidence. Consequently, Gathers further narrowed

the set of circumstances under which victim impact evidence could be admitted

at capital sentencing hearings.21 Ultimately, Gathers reaffirmed that capital

sentencing hearings should concentrate on the crime from the defendant’s

perspective, as assessed by their actions, rather than from the community’s

perspective, as assessed by the victim’s perceived social worth communicated

through their possessions and affected loved ones.

Justice O’Connor dissented, and was joined by Chief Justice Rehnquist

and Justice Kennedy. O’Connor asserted that the unanticipated consequences

of the defendant’s actions are just as important when determining the

appropriate sentence as understanding the circumstances which may have led to

the defendant’s criminal actions, such as poor mental health.22 Additionally,

she argued that the uniqueness of the defendant and victim are both relevant to

19. See South Carolina v. Gathers, 490 U.S. 805, 811 (1989) (“While in this case it was the

prosecutor rather than the victim’s survivors who characterized the victim’s personal qualities, the

statement is indistinguishable in any relevant respect from that in Booth.”).

20. See Booth, 482 U.S. at 507 n.10 (“Our disapproval of victim impact statements at the

sentencing phase of a capital case does not mean, however, that this type of information will never

be relevant in any context. Similar types of information may well be admissible because they relate

directly to the circumstances of the crime. Facts about the victim and family also may be relevant

in a noncapital criminal trial. Moreover, there may be times that the victim’s personal characteristics

are relevant to rebut an argument offered by the defendant.”).

21. See Gathers, 490 U.S. at 811 (“The fact that Gathers scattered Haynes’ personal papers

around his body while going through them looking for something to steal was certainly a relevant

circumstance of the crime, and thus a proper subject for comment. But the prosecutor’s argument

in this case went well beyond that fact: he read to the jury at length from the religious tract the

victim was carrying and commented on the personal qualities he inferred from Haynes’ possession

of the ‘Game Guy’s Prayer’ and the voter registration card. The content of these cards, however,

cannot possibly have been relevant to the ‘circumstances of the crime.’ There is no evidence

whatever that the defendant read anything that was printed on either the tract or the voter card.

Indeed, it is extremely unlikely that he did so.”).

22. See id. at 818 (O’Connor, J., dissenting) (“That the harm caused by a defendant’s actions

is relevant to the capital sentencer’s moral judgment concerning the appropriate penalty, even if the

defendant did not specifically intend that harm, is a principle recognized both in the decisions of

this Court and in legislative decisions concerning appropriate levels of punishment.”).


sentencing.23 In a separate dissent, Justice Scalia expressed the opinion that the

Booth ruling had been incorrectly decided, and that it was better to correct the

error quickly so that it would not result in further flawed rulings.24

C. Payne v. Tennessee (1991)

Two years after Gathers, the U.S. Supreme Court reversed its stance on

admitting victim impact evidence at capital sentencing hearings in Payne v.

Tennessee. The majority opined that Booth relied on a “misreading of

precedent . . . [that] unfairly weighted the scales in a capital trial” toward the

defendant.25 The Court suggested that jurors have already been exposed to the

majority of victim impact evidence during the guilt phase, and therefore

repeated exposure should not have a biasing effect.26 Consequently, the Court

ruled that states can regulate victim impact evidence as they see fit, and

defendants sentenced to death because of bias-inducing victim impact evidence

can appeal the decision under the Fourteenth Amendment’s Due Process

Clause.27 In Payne, the Court allowed states to admit victim impact evidence

at capital trials if they wished, but did not find that the Constitution requires

states to consider such evidence.

Justice O’Connor issued a concurring opinion and was joined by Justices

White and Kennedy. She noted that the majority of states had passed legislation

permitting victim impact evidence, and trial judges frequently exercised

discretion to prohibit the introduction of biasing material.28 As a result, trial

judges could be trusted to make appropriate decisions concerning the

admissibility of victim impact evidence on a case-by-case basis. Additionally,

victim impact evidence helps prosecutors establish that the victims “were

unique human beings.”29 Justice Scalia, joined by Justices O’Connor and

Kennedy in a concurring opinion, alleged that Booth contradicted past Court

precedents, and therefore the Court was obligated to disregard Booth in order to

reaffirm earlier precedents.30 Justice Kennedy joined Justice Souter in a third

concurring opinion. Souter acknowledged the risk that some victim impact

23. See id. at 820–21 (“Just as Gathers’ own background was important to the jury’s

assessment of him . . . so information about his equally unique victim was relevant to the jury’s

assessment of the harm he had caused and the appropriate penalty.”).

24. See id. at 825 (Scalia, J., dissenting) (“Booth has not even an arguable basis in the

common-law background that led up to the Eighth Amendment, in any longstanding societal

tradition, or in any evidence that present society, through its laws or the actions of its juries, has set

its face against considering the harm caused by criminal acts in assessing responsibility. The Court’s

opinion in Booth, like today’s opinion, did not even try to assert the contrary. We provide far greater

reassurance of the rule of law by eliminating than by retaining such a decision.”).

25. See Payne v. Tennessee, 501 U.S. 808, 822 (1991).

26. See id. at 823.

27. See id. at 825.

28. See id. at 831 (O’Connor, J., concurring).

29. Id at 832.

30. See id. at 835 (Scalia, J., concurring) (“It was, I suggest, Booth, and not today’s decision,

that compromised the fundamental values underlying the doctrine of stare decisis.”).


evidence would cause bias, but did not consider this risk so great as to

categorically bar all victim impact evidence from consideration.31 Moreover,

Souter argued that all defendants understand “that the life he will take by his

homicidal behavior is that of a unique person, like himself, and that the person

to be killed probably has close associates, . . . who will suffer harms and

deprivations from the victim’s death.”32 For this reason, Souter did not consider

victim impact evidence to represent the community’s perspective, but rather the

defendant’s perspective, as required by Gathers. Finally, Justice Souter echoed

Scalia’s opinion by observing that it was better to fix Booth rather than cling to

its flawed interpretations.33

Justice Marshall, joined by Justice Blackmun, dissented. Marshall

lamented the majority’s disregard for precedents and argued that it had been

looking for a way to overturn Booth and Gathers ever since the Court’s

composition had changed.34 Justice Stevens also dissented and was joined by

Justice Blackmun. Stevens reiterated that trials revolve around the defendant,

not the victim, and therefore victim impact evidence has no place in capital

sentencing hearings.35 In his most instructive passage, Stevens wrote, “[t]he

Constitution’s proscription against the arbitrary imposition of the death penalty

must necessarily proscribe the admission of evidence that serves no purpose

other than to result in such arbitrary sentences.”36

Stevens concluded his dissent by arguing that jurors already recognize that

victims are unique individuals, and therefore victim impact evidence only

serves to create sentencing disparities based on victims’ standing in the

community, with defendants who killed more esteemed victims

disproportionately at risk for receiving the death penalty.37

31. See id. at 836 (Souter, J., concurring) (“Evidence about the victim and survivors, and

any jury argument predicated on it, can of course be so inflammatory as to risk a verdict

impermissibly based on passion, not deliberation.”).

32. Id. at 838.

33. See id. at 843 (“[W]e have chosen not to compound the original error, but to overrule

the precedent.”).

34. See id. at 844 (Marshall, J., dissenting) (“Power, not reason, is the new currency of this

Court’s decisionmaking. . . . [H]aving expressly invited respondent to renew the attack today’s

majority overrules Booth and Gathers and credits the dissenting views expressed in those cases.

Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four

years. Only the personnel of this Court did.”) (citation omitted).

35. See id. at 859 (Stevens, J., dissenting) (“The victim is not on trial; her character, whether

good or bad, cannot therefore constitute either an aggravating or a mitigating circumstance.”).

36. Id. at 866.

37. See id. (“The fact that each of us is unique is a proposition so obvious that it surely

requires no evidentiary support. What is not obvious, however, is the way in which the character or

reputation in one case may differ from that of other possible victims. Evidence offered to prove

such differences can only be intended to identify some victims as more worthy of protection than

others.”).


D. Kelly v. California (2008)

Seventeen years after Payne, the U.S. Supreme Court declined the

opportunity to revisit its earlier decision despite several state courts admitting

lengthy videos that contained dozens of photographs of the victims set to music

as victim impact evidence.38 Two Justices expressed a desire to hear the case.

In his dissent, Justice Stevens voiced concern over the Court’s unwillingness to

regulate the admissibility of victim impact evidence.39 He also questioned the

relevance of victim impact evidence that shows adult victims in childhood,40

and displayed skepticism that photographs and videos of victims set to music

were constitutionally permissible.41 Stevens concluded by noting: “These

videos are a far cry from the written victim impact evidence at issue in Booth

and the brief oral testimony condoned in Payne. In their form, length, and

scope, they vastly exceed the ‘quick glimpse’ the Court’s majority contemplated

when it overruled Booth in 1991.”42

Justice Breyer also dissented, calling attention to the unique problems

posed by technological advancements since Payne.43 He ended his dissent by

urging the Court to provide clear rules for determining the admissibility of

victim impact evidence consistent with twenty–first century technology

capabilities.44

38. See Kelly v. California, 555 U.S. 1020 (2008); see also Harden, supra note 3, at 879

(“Victim impact videos like the one in Kelly are a ‘far cry’ from what the Payne majority

contemplated . . . .”).

39. See Kelly, 555 U.S. at 1024 (“Given Payne’s sharp retreat from prior precedent, it is

surprising that neither the opinion of the Court nor any of the concurring opinions made a serious

attempt to define or otherwise constrain the category of admissible victim impact evidence.”).

40. See id. at 1025 (“The pictures and video footage shown to the juries portrayed events

that occurred long before the respective crimes were committed and that bore no direct relation to

the effect of crime on the victims’ family members.”).

41. See id. (“[W]hen victim impact evidence is enhanced with music, photographs, or video

footage, the risk of unfair prejudice quickly becomes overwhelming. While the video tributes at

issue in these cases contained moving portrayals of the lives of the victims, their primary, if not

sole, effect was to rouse jurors’ sympathy for the victims and increase jurors’ antipathy for the

capital defendants. The videos added nothing relevant to the jury’s deliberations and invited a

verdict based on sentiment, rather than reasoned judgment.”).

42. Id. at 1025–26.

43. See id. at 1026–27 (Breyer, J., dissenting) (“[T]he film’s personal, emotional, and artistic

attributes themselves create the legal problem. They render the film’s purely emotional impact

strong, perhaps unusually so. That emotional impact is driven in part by the music, the mother’s

voiceover, and the use of scenes without victim or family (for example, the film concludes with a

clip of wild horses running free). Those aspects of the film tell the jury little or nothing about the

[facts of the crime] . . . .”).

44. See id. at 1027 (“I understand the difficulty of drawing a line between what is, and is

not, constitutionally admissible in this area. But examples can help elucidate constitutional

guidelines. And in my view, the Court should grant certiorari and consider these cases in an effort

to do so.”).


II. SUMMARY OF STATE COURT CASES INVOLVING ATYPICAL VICTIM IMPACT

EVIDENCE

This section is broken into two parts. The first part briefly reviews state

court cases where atypical victim impact evidence other than photographs or

videos of victims was presented. The second part concentrates on state court

cases where victim impact evidence included photographs or videos of victims.

A. Court Cases Not Involving Photographs Or Videos

Twelve court cases from ten different states were identified as involving

atypical victim impact evidence other than photographs or videos of victims.45

Courts in Arizona, Arkansas, Connecticut, Missouri, and New Jersey have

permitted poems to be admitted as victim impact evidence. A sixth state,

Louisiana, considers poems an acceptable form of victim impact evidence, but

does not appear to have ever had a case where a poem was submitted for victim

impact testimony. Courts in California and Nebraska have ruled that songs or

singing can be permissible as victim impact evidence. In People v. Verdugo,46

the trial court allowed the victim’s loved ones to play several Mexican songs

from a mixtape that the victim had recorded for her father prior to her murder.

In State v. Koch, the victim’s sister “sang two portions of her statement.”47

Table 1. State Court Cases Involving Atypical Victim Impact Evidence

State/Court Case48 Poem? Song/Singing? Audio

Recording? Other? Allowable?

Arizona

State v. Gallardo No No Yes No Yes

State v. Rose Yes No Yes No Yes

Arkansas

Noel v. State Yes No No No Yes

California

People v. Verdugo No Yes No No Yes

Connecticut

State v. Couture Yes No No No Yes

Louisiana

State v. Jacobs Yes* No No No Yes

Missouri

45. See infra, Table 1.

46. See People v. Verdugo, 236 P.3d 1035, 1063 (Cal. 2010).

47. State v. Koch, No. A-15-959, 2016 WL 3083135, at 3 (Neb. Ct. App. May 24, 2016).

48. The cases analyzed are: State v. Gallardo, 242 P.3d 159 (Ariz. 2010) (en banc); State v.

Rose, 297 P.3d 906 (Ariz. 2013); Noel v. State, 960 S.W.2d 439 (Ark. 1998); People v. Verdugo,

236 P.3d 1035 (Cal. 2010); State v. Couture, No. UWYCR0471979, 2014 WL 4357521 (Conn.

Super. Ct. June 24, 2014); State v. Jacobs, 880 So. 2d 1 (La. 2004) (mem.); State v. Basile, 942

S.W.2d 342 (Mo. 1997) (en banc); State v. Koch, No. A-15-959, 2016 WL 3083135 (Neb. Ct. App.

May 24, 2016); State v. Koskovich, 776 A.2d 144 (N.J. 2001); State v. Hess, 23 A.3d 373 (N.J.

2011); State v. White, 565 S.E.2d 55 (N.C. 2002); Malone v. State, 168 P.3d 185 (Okla. Crim. App.

2007).


State v. Basile Yes No No Diary Yes

Nebraska

State v. Koch No Yes No No Yes

New Jersey

State v. Koskovich Yes No No No Yes

State v. Hess Yes No No No Yes

North Carolina

State v. White No No No Cookbook Yes

Oklahoma

Malone v. State No No No Birthday

Card No

*Court noted that poems are permissible victim impact evidence at capital trials, but no poem was submitted during this trial.

Arizona has twice permitted audio recordings as victim impact

evidence. In State v. Gallardo, the victim’s father conveyed the impact the

crime had on him by replaying the 911 call where he discovered his son’s

body.49 Similarly, in State v. Rose, the trial court admitted thirty-five seconds

of the victim’s fellow police officers honoring him over the radio in the

moments immediately following his death.50 Finally, court cases in Missouri,51

North Carolina,52 and Oklahoma53 have involved a diary, cookbook, and

birthday cards, respectively, as victim impact evidence. Oklahoma’s Court of

Criminal Appeals ultimately ruled that the birthday cards were inadmissible.54

B. Court Cases Involving Photographs or Videos

Legal scholars have previously noted that state courts consider multiple

factors when evaluating the admissibility of victim impact evidence containing

photographs or videos of victims.55 The following court cases are evaluated

according to these factors.

49. See State v. Gallardo, 242 P.3d 159, 166 (Ariz. 2010) (en banc).

50. See State v. Rose, 297 P.3d 906, 918 n.2 (Ariz. 2013) (describing that the message

broadcast read, “All units stand by for a broadcast. This is the last call for Officer George Cortez,

Jr., number 8232, 834 Henry. 834 Henry is 236290 West Northern. 834 Henry you’re now 10–7.

Rest in peace. You’ll be greatly missed. Goodnight sir. Stations clear for [audio cuts out].”).

51. See State v. Basile, 942 S.W.2d 342, 358 (Mo. 1997) (en banc).

52. See State v. White, 565 S.E.2d 55, 68 (N.C. 2002).

53. See Malone v. State, 168 P.3d 185, 209 (Okla. Crim. App. 2007).

54. See id. at 210 (“We find that . . . the victim’s mother and sister should not have been

allowed to read from their cards from the victim.”).

55. See Kennedy, supra note 6, at 1087 (“Courts appear to employ a multi-factor balancing

test in which each element of the video length, number of photographs, and music, as well as the

other available evidence, are each but one factor to be considered in determining admissibility as a

whole.”); see also Harden, supra note 3, at 854 (“Although victim impact videos do not have an

exact legal definition, basic characteristics stand out as key factors in a court’s analysis of the

admissibility of a particular video: length, type of photographs, music, and availability of other

types of victim impact evidence.”).


Seventeen state courts plus federal courts have dealt with cases involving

photographs of victims as victim impact evidence.56 The number of photos

presented in these cases has ranged from one to more than two hundred. For

the thirty court cases where the exact number of photographs was reported, the

mean court case had 38 photographs, the median court case had 12.5

photographs, and the mode court case had a single photograph. In ten state court

cases, plus a federal court case, victims’ loved ones were permitted to present

images of an adult victim depicted in childhood. In three state courts—New

Jersey, Oklahoma, Texas— and one federal district court, the judges ultimately

ruled that the victim impact evidence containing these images was inadmissible.

Cases from five states’ courts plus one federal court involved victim impact

evidence containing images of the victim’s funeral or gravestone. New Jersey

and a federal court ultimately ruled that the victim impact evidence containing

these images was inadmissible.



Table 2. Cases Involving Photo or Video Victim Impact Evidence.

State/Court

Case57

# of

Photos

Child Photo

?*

Grave

Photo?

Runtime (if

Video)

Music?

Screened by

Court?

Allowable

?

Arizona

State v. Ellison

>1 N/A No - No No Yes

State v.

Levitski 2 N/A N/A - Yes No Yes

State v. Rose 2 No Yes - No No Yes

State v.

Burns 110 N/A Yes 8 min. N/A No Yes

Arkansas

Hicks v. State

160 Yes N/A 14 min. No Yes Yes

Burgie v.

State 1 No No - No N/A Yes

57. The cases analyzed are: State v. Ellison, 140 P.3d 899 (Ariz. 2006) (en banc); State v.

Levitski, No. 2 CA-CR 2007-0372-PR, 2008 WL 2623956 (Ariz. Ct. App. June 3, 2008); State v.

Rose, 297 P.3d 906 (Ariz. 2013); State v. Burns, 344 P.3d 303 (Ariz. 2015); Hicks v. State, 940

S.W.2d 855 (Ark. 1997); Burgie v. State, No. CR 02–90, 2003 WL 367733 (Ark. Feb. 20, 2003);

Tate v. State, 242 S.W.3d 254 (Ark. 2006); People v. Edwards, 819 P.2d 436 (Cal. 1991); People

v. Harris, 118 P.3d 545 (Cal. 2005); People v. Robinson, 124 P.3d 363 (Cal. 2005); People v. Kelly,

171 P.3d 548 (Cal. 2007); People v. Prince, 156 P.3d 1015 (Cal. 2007); People v. Zamudio, 181

P.3d 105 (Cal. 2008); People v. Dykes, 209 P.3d 1 (Cal. 2009); People v. Bramit, 210 P.3d 1171

(Cal. 2009); People v. Hamilton, 200 P.3d 898 (Cal. 2009); People v. Russell, 242 P.3d 68 (Cal.

2010); People v. Verdugo, 236 P.3d 1035 (Cal. 2010); People v. Vines, 251 P.3d 943 (Cal. 2011);

People v. Booker, 245 P.3d 366 (Cal. 2011); People v. Garcia, 258 P.3d 751 (Cal. 2011); People v.

Linton, 302 P.3d 927 (Cal. 2013); People v. Montes, 320 P.3d 729 (Cal. 2014); People v. Sandoval,

363 P.3d 41 (Cal. 2015); People v. Williams, 355 P.3d 444 (Cal. 2015); People v. Peoples, 365 P.3d

230 (Cal. 2016); People v. Winbush, 387 P.3d 1187 (Cal. 2017); Branch v. State, 685 So. 2d 1250

(Fla. 1996); Alston v. State, 723 So. 2d 148 (Fla. 1998); Mansfield v. State, 758 So. 2d 636 (Fla.

2000); Wheeler v. State, 4 So. 3d 599 (Fla. 2009); Davis v. State, 121 So. 3d 462 (Fla. 2013); Lance

v. State, 560 S.E.2d 663 (Ga. 2002); Tollette v. State, 621 S.E.2d 742 (Ga. 2005); Bryant v. State,

708 S.E.2d 362 (Ga. 2011); State v. Leon, 132 P.3d 462 (Idaho Ct. App. 2006); State v. Anthony,

776 So. 2d 376 (La. 2000); Whittlesey v. State, 665 A.2d 223 (Md. 1995); Lopez v. State, 153 A.3d

780 (Md. Ct. Spec. App. 2017); State v. Parker, 886 S.W.2d 908 (Mo. 1994) (en banc); State v.

Gray, 887 S.W.2d 369 (Mo. 1994) (en banc); State v. Basile, 942 S.W.2d 342 (Mo. 1997) (en banc);

State v. Middleton, 995 S.W.2d 443 (Mo. 1999) (en banc); State v. Gill, 167 S.W.3d 184 (Mo. 2005)

(en banc); State v. Driskill, 459 S.W.3d 412 (Mo. 2015) (en banc); State v. Galindo, 774 N.W.2d

190 (Neb. 2009); Greene v. State, 931 P.2d 54 (Nev. 1997); State v. Addison, 87 A.3d 1 (N.H.

2013); State v. Hess, 23 A.3d 373 (N.J. 2011); State v. Allen, 994 P.2d 728 (N.M. 1999); People v.

Mooney, 506 N.Y.S.2d 991 (Genesee Cty. Ct. 1986); State v. McCullough, No. 98AP-988, 1999

WL 536647 (Ohio Ct. App. July 27, 1999); State v. Hartman, 754 N.E.2d 1150 (Ohio 2001); Cargle

v. State, 909 P.2d 806 (Okla. Crim. App. 1995); Al-Mosawi v. State, 929 P.2d 270 (Okla. Crim.

App. 1996); State v. Tucker, 478 S.E.2d 260 (S.C. 1996); State v. Livingston, 488 S.E.2d 313 (S.C.

1997); State v. Langley, 515 S.E.2d 98 (S.C. 1999); State v. Bixby, 698 S.E.2d 572 (S.C. 2010);

State v. Berget, 826 N.W.2d 1 (S.D. 2013); Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002);

State v. Blake, No. 2007AP2468-CR, 2008 Wisc. App. LEXIS 881 (Wis. Ct. App. Nov. 12, 2008);

United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998); United States v. Sampson, 335 F. Supp.

2d 166 (D. Mass. 2004); United States v. Wilson, 493 F. Supp. 2d 491 (E.D. N.Y. 2007).


Tate v. State 12 No No - No N/A Yes

California

People v.

Edwards 3 No No - No N/A Yes

People v.

Harris 1 No Yes - No No Yes

People v.

Robinson 22 Yes No - No N/A Yes

People v.

Kelly >1 Yes Yes 20 min. Yes Yes Yes

People v.

Prince 0 No No 25 min. No N/A Yes

People v. Zamudio

118 Yes Yes 14 min. Yes Yes Yes, but

not music

People v.

Dykes 3 No No 8 min. No Yes

Yes, but

not music

People v. Bramit

<20 Yes No N/A No N/A Yes

People v.

Hamilton >2 No No - No Yes Yes

People v. Russell

57 N/A N/A - No N/A Yes

People v.

Verdugo >1 No Yes - No N/A Yes

People v. Vines

0 No No 5 min. Yes Yes Yes

People v. Booker

39 No No

4 min.;

5 min.;

7 min.

No Yes Yes

People v.

Garcia >1 No No

11:45

min. Yes Yes Yes

People v.

Linton 13 No No - No No Yes

People v.

Montes 115 No Yes

10:30

min. Yes Yes Yes

People v.

Sandoval >1 Yes Yes 6 min. Yes N/A

Yes, but

not music

People v.

Williams >1 No No N/A Yes Yes

Yes, but

not music

People v. Peoples

>1 Yes Yes - No Yes Yes

People v.

Winbush 53 Yes N/A 18 min. No Yes Yes

Florida

Branch v. State

1 No No - No N/A Yes

Alston v.


Mansfield v. State


Wheeler v.


Davis v. State

>1 N/A N/A - No N/A Yes

Georgia

Lance v.

State >1 N/A N/A - No Yes Yes


Tollette v. State

N/A N/A N/A “short” No Yes Yes

Bryant v.

State >1 Yes N/A - No Yes Yes

Idaho

State v. Leon >1 No Yes 4:30 min.

Yes Yes Yes

Louisiana

State v.

Anthony N/A N/A N/A “brief” N/A N/A Yes

Maryland

Whittlesey v.

State 0 No No

1:30

min. Yes Yes Yes

Lopez v. State

115 Yes No 6 min. Yes N/A Yes

Missouri

State v.

Parker 1 Yes No - No N/A Yes

State v. Gray 0 No No N/A No N/A Yes

State v.

Basile >1 N/A N/A - No N/A Yes

State v. Middleton


State v. Gill 27 No No - No N/A Yes

State v.

Driskill >1 Yes No - No N/A Yes

Nebraska

State v.

Galindo 0 N/A N/A N/A N/A Yes No

Nevada

Greene v. State

>1 N/A N/A - N/A N/A Yes

New

Hampshire

State v.

Addison 36 Yes No

0:18 min.;

0:34

min.; 1:33

min.

No Yes Yes

New Jersey

State v. Hess 60 Yes Yes 17 min. Yes N/A No

New Mexico

State v. Allen 0 No No 3 min. No Yes Yes

New York

People v.

Mooney 0 No No 240 min. No N/A Yes

Ohio

State v.

McCullough >1 N/A N/A N/A N/A N/A Yes

State v. Hartman


Oklahoma

Cargle v.

State >1 Yes No - No N/A No

Al-Mosawi v. State

2 No No - No N/A No


South Carolina

State v.

Tucker >3 No No - No N/A Yes

State v. Livingston

1 No No - No N/A No

State v.

Langley 1 No No - No N/A No

State v. Bixby

0 No Yes 7 min. Yes N/A Yes

South

Dakota

State v. Berget


Texas

Salazar v.

State 140 Yes No 17 min. Yes No No

Wisconsin

State v.

Blake >1 Yes N/A N/A Yes N/A Yes

Federal Court Cases

United States

v. McVeigh >1 N/A N/A N/A N/A Yes No

United States v. Sampson

>200 Yes Yes 27 min. Yes Yes No

United States

v. Wilson 0 No No 20 min. No N/A Yes

*Adult victim shown as a child in a photograph presented as victim impact evidence.

Sixteen states’ courts plus federal courts encountered cases where videos

were presented as victim impact evidence. Nebraska, New Jersey, and Texas

ultimately ruled the videos inadmissible. The length of videos presented as

victim impact evidence varied greatly, ranging from under a minute all the way

up to four hours. For the twenty–seven videos where the exact runtime was

reported, the mean runtime was 18.5 minutes, the median runtime was eight

minutes, and the mode runtime was eight minutes. Three basic types of videos

were presented. The first type involved video slideshows comprised entirely of

still photographs of the victim. In State v. Blake, for example, the victim’s

mother presented a PowerPoint slideshow backed by an accompanying

soundtrack.58 The second type strictly involved video clips rather than still

photographs. Three poignant examples are relevant here. In State v. Bixby,

video footage of a police officer’s funeral was admitted as victim impact

evidence.59 In People v. Vines, the victim was shown engaging in some of his

58. See State v. Blake, No. 2007AP2468-CR, 2008 Wisc. App. LEXIS 881, at *7 (Wis. Ct.

App. Nov. 12, 2008) (“Ross’s mother asked to be allowed to also show a PowerPoint photo montage

of Ross’s life accompanied by a recorded musical tribute written and sung by one of Ross’s

friends.”).

59. See State v. Bixby, 698 S.E.2d 572, 586 (S.C. 2010) (“The video at issue here contained

footage that showed the folding of an American flag over the closed coffin; the playing of ‘Taps’


favorite activities.60 In People v. Mooney, the video of an entire restorative

justice meeting between the defendant and several victims was introduced as

victim impact evidence.61 Finally, the third type inserted still photographs

between sections of recorded video. State v. Hess serves as an example of this

hybrid type of video victim impact evidence.62

Eight states plus federal courts have been confronted with video clips or

slideshows accompanied by music. New Jersey, Texas, and some federal courts

ultimately ruled those videos inadmissible. In contrast, California routinely

admitted the videos, but required all background music to be removed prior to

admission.63 In People v. Sandoval, the Supreme Court of California

categorically banned victim impact videos from containing accompanying

music.64 The type of music played during victim impact videos has taken

several different forms. In People v. Kelly, for example, the included music

on a trumpet; footage of mourners; and a recording of a fictional 911 call in which Deputy Wilson

is given permission to ‘return home,’ a tradition at law enforcement funerals.”).

60. See People v. Vines, 251 P.3d 943, 986 (Cal. 2011) (“In the five-minute

videotape . . . Ronald Lee is seen singing, dancing, and rapping in three musical numbers with

relatives, including his cousin Littell Williams, Jr.; in a fourth number, Lee and several other young

people perform before a crowd in a high school auditorium. The videotape is of ‘home movie’

quality, without added music, narration or visual techniques . . . . The videotape depicts Lee at an

age only about two years younger than he was at the time of his death at age 20 . . . .”).

61. See People v. Mooney, 506 N.Y.S.2d 991, 994 (Genesee Cty. Ct. 1986) (“The victim

impact statement includes here a video tape of a victim reconciliation conference conducted on

August 17, 1985 approximating four hours in length. Parts one and two consist of a mediated face-

to-face confrontation between the defendant and the two immediate victims involved, along with

the mother of one victim. Parts three and four consist of an additional confrontation between the

same parties, along with other selected representatives of the LeRoy community from law

enforcement, the clergy, governmental officials and the citizenry.”).

62. See State v. Hess, 23 A.3d 373, 381 (N.J. 2011) (“The video consists of a montage of

approximately sixty still photographs of Jimmy’s life from childhood to adulthood, including a

photograph of his tombstone. It also consists of four separate home-video clips of Jimmy: his

graduation from the police academy, coaching a baseball game, and appearing on fishing trips. The

video includes a television segment that covered Jimmy’s funeral.”).

63. See People v. Zamudio, 181 P.3d 105, 134 (Cal. 2008) (“The trial court ruled that the

picture montage could be played, that the audio portion of the montage—consisting of music and

narration—could not be played, and that a family member could describe each photograph in the

montage from the witness stand.”); see also People v. Williams, 355 P.3d 444, 475 (Cal. 2015)

(“The trial court admitted both tapes but directed that the music accompanying the second be muted

to avoid evocation of an emotional response.”); People v. Dykes, 209 P.3d 1, 48 (Cal. 2009) (“The

trial court exercised appropriate caution to avoid introducing irrelevant drama and undue emotion

into the penalty determination. The court carefully reviewed the videotape prior to its admission,

ordered the audio portion deleted, and vigorously cautioned the prosecutor to ensure that Kristie

Clark’s commentary during the playing of the videotape should be unemotional.”).

64. See People v. Sandoval, 363 P.3d 41, 76 (Cal. 2015) (“We hold that because background

music in victim impact presentations provides no relevant information and is potentially prejudicial,

it is never permitted. Music in such presentations is permissible only when it is relevant to the jury’s

penalty phase decision.”).


consisted of sad sounding popular music.65 Similar examples include Salazar

v. State,66 People v. Garcia,67 State v. Leon,68 and United States v. Sampson.69

In contrast, Whittlesey v. State70 and People v. Vines71 exemplify a second form,

where the victim is shown displaying their musical talent. A third type of music

played is sad instrumental music without words. People v. Montes,72 Lopez v.

State,73 and State v. Bixby74 all contained music fitting this description. People

v. Sandoval serves as an example of a fourth type of music characterized by

instrumentals intended to evoke images of heroism and sacrifice.75 In a fifth

type of music, State v. Blake contained original music composed specifically

65. See People v. Kelly, 171 P.3d 548, 570 (Cal. 2007) (“Throughout much of the video, the

music of Enya—with most of the words unrecognizable—plays in the background; the music is

generally soft, not stirring.”).

66. See Salazar v. State, 90 S.W.3d 330, 333 (Tex. Crim. App. 2002) (“Music accompanies

the entire seventeen-minute video and includes such selections as ‘Storms in Africa’ and ‘River’ by

Enya, and concludes with Celine Dion singing, ‘My Heart Will Go On,’ from the movie Titanic.”).

67. See People v. Garcia, 258 P.3d 751, 761 (Cal. 2011) (“[A]t the end of the videotape, a

song plays softly in the background for 80 seconds, with lyrics about a ‘hero [who] goes free’ and

a ‘villain [who] goes to jail.’”) (second and third alterations in original).

68. See State v. Leon, 132 P.3d 462, 464 (Idaho Ct. App. 2006) (“The video portion of the

DVD had contemporaneous audio recordings and the portion showing still photographs was

arranged in a montage and set to music.”).

69. See United States v. Sampson, 335 F. Supp. 2d 166, 191 (D. Mass. 2004) (“The pictures

were set to evocative contemporary music, including that of the Beatles and James Taylor.”).

70. See Whittlesey v. State, 665 A.2d 223, 250 (Md. 1995) (“The tape showed

approximately 90 seconds of Griffin playing the piano, a skill for which he had been nationally

recognized.”).

71. See People v. Vines, 251 P.3d 943, 985 (Cal. 2011) (the victim impact evidence included

“a videotape depicting Ronald Lee singing and dancing, activities at which he was accomplished

and in which he took great pleasure.”).

72. See People v. Montes, 320 P.3d 729, 787 (Cal. 2014) (“The version of the video

previewed by the court and the parties outside the presence of the jury had been 16 to 17 minutes

long and had included Walker’s favorite songs, including ‘Fire and Rain’ by James Taylor. Defense

counsel objected to the emotional effect of the songs and the religious references in two of them.

The trial court found the video images admissible but agreed that the music magnified their

emotional impact and caused the videotape to be substantially more prejudicial than probative. The

court suggested the prosecutor should restrict himself to ‘Muzak-type’ background if he wanted to

use music. The prosecutor subsequently shortened the tape and substituted an instrumental track

with no apparent songs or recognizable themes . . . . [that consisted of] simple piano music . . . .”).

73. See Lopez v. State, 153 A.3d 780, 786 (Md. Ct. Spec. App. 2017) (“The video montage,

in question, was accompanied by instrumental music, a popular song, and a bell, ringing as it began

and then, once again, as it ended.”).

74. See State v. Bixby, 698 S.E.2d 572, 586 (S.C. 2010) (The video included “the playing

of ‘Taps’ on a trumpet.”).

75. See People v. Sandoval, 363 P.3d 41, 75 (Cal. 2015) (the victim impact video was

“accompanied by stirring orchestral music.”).


for the purpose of accompanying the victim impact video presented at trial.76

Finally, the sixth type incorporated several of the other music types into a single

video presentation, as demonstrated in State v. Hess.77

In eight states plus federal courts, trial judges have screened victim impact

evidence in at least some cases to determine whether it is admissible before

exposing jurors to the material. On some occasions, judges have requested

changes to the victim impact evidence before it can be admitted.78 On other

occasions, this screening method has completely barred the victim impact

evidence from admission.79 In Turner v. State, Georgia’s Supreme Court

praised the trial judge for privately viewing the victim impact evidence and

ruling on its admissibility before exposing the jury to potentially biasing

material.80

III. MOVING FORWARD FROM PAYNE

In his concurring opinion in Decay v. State, Arkansas Supreme Court

Justice Robert Brown noted the lack of guiding principles for determining when

to admit or exclude victim impact evidence.81 As he observed, this lack of

guidance is two-fold, since few state statutes address the issue, and courts have

been reluctant to take up the task themselves.82 Absent input from the U.S.

76. See State v. Blake, No. 2007AP2468-CR, 2008 Wisc. App. LEXIS 881, at *7 (Wis. Ct.

App. Nov. 12, 2008) (the victim impact slideshow was “accompanied by a recorded musical tribute

written and sung by one of Ross’s friends.”).

77. See State v. Hess, 23 A.3d 373, 381 (N.J. 2011) (“The entire video is accompanied by a

medley of music: a song by the Beatles, ‘Here Comes the Sun’; a holiday song, ‘I’ll be Home for

Christmas’; two country songs, ‘I’m from the Country’ and ‘Live, Laugh, Love’; one religious

hymn, ‘Here I Am Lord’; and military-like cadences.”).

78. See People v. Williams, 355 P.3d 444, 475 (Cal. 2015); see also People v. Montes, 320

P.3d 729, 787 (Cal. 2014).

79. See State v. Galindo, 774 N.W.2d 190, 244 (Neb. 2009) (“[T]he record is unclear as to

whether Galindo’s Crawford objection was to all the victims’ statements or was instead limited to

the State’s proposed introduction of a videotape containing victim statements, an action which the

trial court disallowed.”).

80. Turner v. State, 486 S.E.2d 839, 842 (Ga. 1997) (“The procedure used by the state and

trial court in this case has much to commend it. It enables the jury to hear the evidence allowable

under O.C.G.A. § 17-10-1.2, but also ensures that evidence that might be unduly prejudicial is not

admitted. By providing a copy of the statement to the defense and the court before the sentencing

phase, the trial court may ensure that the statement does not contain highly inflammatory

statements.”).

81. See Decay v. State, 352 S.W.3d 319, 334 (Ark. 2009) (Brown, J., concurring) (“In my

concurring opinion in Hicks v. State, 327 Ark. 727, 940 S.W.2d 855 (1997), over ten years ago, I

expressed my concern over the lack of guidance for the introduction of victim-impact evidence in

Arkansas. I also called on the General Assembly or this court to fashion criteria for the introduction

of such evidence. Trial courts still lack concrete guidelines by which to judge the relevance or

prejudicial nature of victim-impact testimony. This critical issue needs to be addressed . . . .”).

82. See id.; see also Kennedy, supra note 6, at 1076 (“For the most part, states have not

promulgated specific rules about what kinds or amounts of evidence are admissible, what is too


Supreme Court,83 at least one legal scholar has recommended that states exclude

all video victim impact evidence.84 The same scholar concedes, however, that

“not every video contains the dramatic and emotional cinematic elements”

associated with an unacceptable risk of prejudicing jurors against the

defendant.85 Additionally, other legal scholars have recognized that victim

impact evidence is here to stay for the foreseeable future.86 As a result, states

should not seek to categorically ban victim impact videos, but rather create

detailed statutes establishing appropriate parameters for their admissibility.

Any video that subsequently fails to meet the criteria outlined in those statutes

should be ruled inadmissible.

A. Court and Legal Scholars’ Recommendations

1. Limited Number of Photographs

Several courts have suggested that victim impact evidence can become

prejudicial toward the defendant simply through “sheer volume.”87 These

courts echoed the U.S. Supreme Court’s ruling in Payne that “[a] State may

decide . . . that the jury should see ‘a quick glimpse of the life petitioner chose

to extinguish.’”88 In Salazar v. State and United States v. Sampson, the number

of photographs presented in the victim impact videos factored into their

prejudicial nature and subsequent inadmissibility (one hundred forty and two

hundred, respectively).89 Thus, some precedent exists for setting an upper limit

much as to be ‘unduly prejudicial,’ or what amount will result in a ‘fundamentally unfair trial.’”)

(footnote omitted).

83. See Blume, supra note 4; see also Kennedy, supra note 6, at 1070 (“The law governing

the admissibility of victim impact evidence is generally quite vague.”).

84. See Harden, supra note 3, at 848 (“This Note advocates for the adoption of a bright-line

rule against video montages as victim impact evidence in capital punishment sentencing trials

because victim impact videos result in fundamentally unfair trials, are outside the scope of the

Court’s holding in Payne, and are irrelevant and unduly prejudicial under Federal Rules of Evidence

401 and 403.”).

85. Id. at 875.

86. See Austin, supra note 3, at 984 (“[T]he U.S. Supreme Court is not likely to reverse its

decisions admitting victim impact evidence in capital cases anytime soon.”).

87. Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998) (“[W]e caution that victim

impact and character evidence may become unfairly prejudicial through sheer volume. Even if not

technically cumulative, an undue amount of this type of evidence can result in unfair prejudice under

Rule 403. Hence, we encourage trial courts to place appropriate limits upon the amount, kind, and

source of victim impact and character evidence.”); see also Hicks v. State, 940 S.W.2d 855, 860

(Ark. 1997) (Brown, J., concurring) (“I could find no case that has gone as far as the instant case in

allowing the sheer number of photographs coupled with the narration by a family member.”).

88. Payne v. Tennessee, 501 U.S. 808, 830 (1991) (O’Connor, J., concurring) (quoting Mills

v. Maryland, 486 U.S. 367, 397 (1988) (Rehnquist, J., dissenting)).

89. See Emily Holland, Note, Moving Pictures . . . Maintaining Justice? Clarifying the

Right Role for Victim Impact Videos in the Capital Context, 17 BERKELEY J. CRIM. L. 147, 162

(2012) (“As to the number of images these victim impact videos may contain, one court prohibited


to the number of photographs that victim’s loved ones can present of the victim.

As previously mentioned, the median number of photographs presented in the

thirty court cases where the exact number of photographs presented could be

ascertained was 12.5.90 The mode number of photographs presented was one.91

Based on these figures, it is recommended for states to limit the total number of

photographs that can be presented as victim impact evidence to ten or fewer.

2. Limited Runtime for Videos

The Payne Court’s ruling that states can introduce “a quick glimpse”92 of

murder victims’ lives suggests that videos should have an upper limit on

runtimes if they are to be admissible. Several courts have agreed. In People v.

Prince, California’s Supreme Court stated, “Courts must exercise great caution

in permitting the prosecution to present victim-impact evidence in the form of

a lengthy videotaped or filmed tribute to the victim. Particularly if the

presentation lasts beyond a few moments . . . .”93 Similarly, New Jersey barred

a victim impact video in State v. Hess in part because the video was “overly

lengthy.”94 In United States v. Sampson, the U.S. District Court of

Massachusetts barred admission of a victim impact video “given its length and

the number of photos displayed.”95 The Texas Court of Criminal Appeals has

urged lower courts “to place appropriate limits upon the amount, kind, and

source of victim impact and character evidence.”96 For its part, New Mexico’s

Supreme Court cited the short runtime of a victim impact video to justify its

admissibility.97 Legal scholars have also argued that a victim impact video’s

runtime is an important factor to consider when evaluating the video’s

admissibility.98 Although New Jersey’s Supreme Court has advised courts to

avoid measuring video runtimes “with stop-watch precision,”99 this appears to

be the only way to limit videos to “a quick glimpse” of the victim’s life.100 As

a video showing two hundred photos, and another court remanded for prejudice a video containing

one hundred and forty photos . . . .”) (footnotes omitted).

90. See supra, Table 2.

91. See supra, Table 2.

92. Payne, 501 U.S. at 830 (O’Connor, J., concurring) (quoting Mills v. Maryland, 486 U.S.

367, 397 (1988) (Rehnquist, J., dissenting)).

93. People v. Prince, 156 P.3d 1015, 1093 (Cal. 2007).

94. State v. Hess, 23 A.3d 373, 394 (N.J. 2011).

95. United States v. Sampson, 335 F. Supp. 2d 166, 192 (D. Mass. 2004).

96. Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998).

97. See State v. Allen, 994 P.2d 728, 751 (N.M. 1999) (“The videotape had been edited so

that it lasted only three minutes.”).

98. See Kennedy, supra note 6, at 1076 (“Regarding the amount of [victim impact] evidence,

courts have looked at the length of time this evidence takes to be presented . . . .”); see also Holland,

supra note 89, at 162 (stating “a video’s duration can prove to be a determinative factor” of whether

that video is ultimately ruled admissible).

99. State v. Koskovich, 776 A.2d 144, 175 (N.J. 2001).

100. Payne v. Tennessee, 501 U.S. 808, 830 (1991) (O’Connor, J., concurring) (quoting

Mills v. Maryland, 486 U.S. 367, 397 (1988) (Rehnquist, J., dissenting)).


previously mentioned, the median and mode runtime for the twenty-seven

videos where the exact runtime could be ascertained was eight minutes. Given

that previous legal research has suggested limiting victim impact videos to

“three to five minutes,”101 however, it is recommended that all victim impact

videos presented at trial have a maximum collective runtime of five minutes.

3. Barring Childhood Depictions of Adult Victims

In People v. Prince, California’s Supreme Court noted that victim impact

evidence requires increased scrutiny if it “emphasizes the childhood of an adult

victim.”102 Similarly, New Jersey’s Supreme Court observed that “photographs

of the victim’s childhood . . . do not project anything meaningful about the

victim’s life as it relate[s] to his family and others at the time of his death.”103

The Texas Court of Criminal Appeals determined that a victim impact

presentation was inadmissible partially due to an “undue emphasis [having been

placed] upon the adult victim’s halcyon childhood.”104 Echoing this, Justice

Stevens, in his dissent to the U.S. Supreme Court’s denial to hear two cases

involving victim impact videos, wrote, “The pictures and video footage shown

to the juries portrayed events that occurred long before the respective crimes

were committed and that bore no direct relation to the effect of crime on the

victims’ family members.”105

Several legal scholars have also cautioned against admitting victim impact

evidence that depicts adult victims as children.106 Moreover, in People v. Vines,

California’s Supreme Court ruled that a victim impact video was admissible

partially because the victim was shown “only about two years younger” than he

101. Austin, supra note 3, at 1014.

102. People v. Prince, 156 P.3d 1015, 1093 (Cal. 2007).

103. State v. Hess, 23 A.3d 373, 393–94 (N.J. 2011). The court also wrote, “baby

photographs of an adult victim . . . do not advance any legitimate objective even against the broad

contours of the Victims’ Bill of Rights.” Id. at 394.

104. Salazar v. State, 90 S.W.3d 330, 337 (Tex. Crim. App. 2002).

105. Kelly v. California, 555 U.S. 1020, 1025 (2008).

106. See Kennedy, supra note 6, at 1090 (“The probative value of the pictures of the victim

as an adult is to show that the victim was a unique individual as allowed by Payne. Why then, are

the pictures of the victim as a child not also probative to show the uniqueness of the victim—that

he did not spring full-grown into life, but had a childhood during which his parents and siblings,

friends and relatives, knew and loved him? It seems that the pictures of the victim as a child could

logically have more probative value than the court is willing to acknowledge. This, however, would

not diminish their elevated prejudicial effect, especially if there are a lot of these types of

photographs.”) (footnote omitted); see also Holland, supra note 89, at 173 (“Videos that depict the

passage of time are also arguably far from the ‘quick glimpse’ Payne envisioned. Referred to by

some as ‘life histories,’ these are the videos that chart a decedent’s life from infancy to death. They

showcase multiple childhood photos of individuals who were adults when they died. Such videos

could create a misleading portrait of who the victim was at death, and whom he or she has left

behind. They could also run the risk of suggesting certain themes to a jury.”) (footnotes omitted);

Austin, supra note 3, at 1014 (“Chronologies beginning at birth and ending at death may be germane

for young children; they should not be considered probative for teenagers or adults.”).


was when the crime was committed.107 Similarly, New Jersey’s Supreme Court

has argued for restricting victim impact presentations to only those photographs

or videos taken “within a reasonable period” leading up to the crime’s

commission.108 For these reasons, it is recommended that states only admit

photographs or videos as victim impact evidence if they show the victim no

more than five calendar years before the commission of the crime.

4. Barring Depictions of Funerals and Tombstones

Oklahoma’s Court of Criminal Appeals has cautioned that, “[v]ictim

impact statements were never intended to be—and should not be allowed to

become—eulogies.”109 Similarly, Texas’s Court of Criminal Appeals declared

that, “the punishment phase of a criminal trial is not a memorial service for the

victim.”110 In State v. Hess, New Jersey’s Supreme Court ruled a victim impact

video inadmissible partially because it depicted aspects of the victim’s

funeral.111 On the other hand, Maryland’s Court of Special Appeals allowed a

victim impact video to be admitted because, unlike Hess, the photographs in the

slideshow did not reference the victim’s burial site.112 Echoing this, California’s

Supreme Court justified admitting a victim impact video because it “[did] not

constitute a memorial, tribute, or eulogy.”113 Finally, at least one legal scholar

has also criticized victim impact evidence that showcases the victim’s funeral

or gravesite.114 For these reasons, it is recommended that states bar admission

of all victim impact evidence depicting a victim’s funeral, memorial, gravesite,

or tombstone.

107. People v. Vines, 251 P.3d 943, 986 (Cal. 2011).

108. Hess, 23 A.3d at 394 (“We in no way intend to limit the right of family members to

present photographs and videos within a reasonable period before the death of the victim . . . .”).

109. Malone v. State, 168 P.3d 185, 210 (Okla. Crim. App. 2007).

110. Salazar v. State, 90 S.W.3d 330, 335–36 (Tex. Crim. App. 2002).

111. See Hess, 23 A.3d at 393–94 (“[T]the photographs of the victim’s . . . tombstone, and

the television segment about his funeral do not project anything meaningful about the victim’s life

as it related to his family and others at the time of his death. They should have been redacted from

the video because they contain little to no probative value, but instead have the great capacity to

unduly arouse or inflame emotions.”).

112. See Lopez v. State, 153 A.3d 780, 799 (Md. Ct. Spec. App. 2017) (“[T]he Hess video,

in contrast to the Lopez video, contained a depiction of the victim’s tombstone and a ‘television

segment about his funeral,’ both of which, undoubtedly, had the capacity to inflame rather than to

inform”) (quoting Hess, 23 A.3d. at 394).

113. People v. Dykes, 209 P.3d 1, 48 (Cal. 2009).

114. See Holland, supra note 89, at 168 (“Victim impact videos that contain images that do

not feature the victim at all might not comport with Payne, either. An example is a video featuring

images of a decedent’s headstone. A juror who sees that headstone, or even reads its inscription,

might respond to this sobering symbol of death with pity or rage, while not gleaning anything about

the decedent’s individuality. Rather than conveying uniqueness, images like these arguably

contribute to the ‘faceless[ness]’ Payne sought to remedy.”) (alteration in original) (footnote

omitted) (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991)).


5. Barring Background Music

No aspect of victim impact videos has been criticized more heavily than

the use of background music. In California, several victim impact videos were

admitted only after removing the accompanying music,115 prior to California’s

Supreme Court prohibiting the use of background music altogether.116 Idaho’s

Court of Appeals questioned the relevance of background music, but ultimately

permitted it in State v. Leon.117 In United States v. Sampson, a federal court

ruled that a victim impact video was inadmissible partially due to its “evocative

accompanying music.”118 The highest courts in New Jersey and Texas have

also excluded victim impact videos for their soundtracks.119 Legal scholars

have been vocal in their criticisms of using background music to accompany

victim impact evidence as well.120 Courts and legal scholars agree, however,

that videos showing victims exercising their musical talents should be

admissible.121 Based on this, it is recommended that states prohibit the use of

accompanying music in victim impact evidence. Victim impact evidence

115. See People v. Zamudio, 181 P.3d 105 (Cal. 2008).

116. See People v. Sandoval, 363 P.3d 41 (Cal. 2015).

117. See State v. Leon, 132 P.3d 462 (Idaho Ct. App. 2006) (“Although the musical

accompaniment arguably did not constitute a valid exercise of a victim’s right to be heard, we do

not find it to be unduly inflammatory or manifestly unjust.”).

118. United States v. Sampson, 335 F. Supp. 2d 166, 192–93 (D. Mass. 2004) (“Together

with the evocative accompanying music, the videotape’s images would have inflamed the passion

and sympathy of the jury.”).

119. See State v. Hess, 23 A.3d 373, 394 (N.J. 2011) (“An overly lengthy video, baby

photographs of an adult victim, and a video scored to religious and pop music do not advance any

legitimate objective even against the broad contours of the Victims’ Bill of Rights.”); see also

Salazar v. State, 90 S.W.3d 330, 339 (Tex. Crim. App. 2002) (“The video itself was not admissible

and the Enya and Celine Dion background music greatly amplifies the prejudicial effect of the

original error.”).

120. See Kennedy, supra note 6, at 1101 (“Adding musical soundtracks to victim impact

videos only exacerbates the arguably inappropriate influence of emotions on capital sentencing.

Music heightens the emotional influence of the visuals generally and introduces more factors that

ought to be irrelevant to the sentencing decision.”); see also Schroeder, supra note 3, at 501

(“Evidence must be relevant to be admitted, but music is never relevant: it is always unnecessary

and does not advance either of the two goals of VIS. Presenting background music with relevant

pictures or videos does not make the music relevant.”); Austin, supra note 3, at 994 (“The choice

of music used in victim impact videos is mostly employed to enhance or exaggerate the impact of

the video.”); Holland, supra note 89, at 168–69 (“More troubling are the videos that contain

professional soundtracks compiled for, and added to, the videos. It is questionable whether a song

or series of songs that were not written by or about the victim, or were possibly even known to the

victim, are an appropriate way to illustrate the decedent to the jury. They may move the jury to feel

emotions prompted by the songs’ music, lyrics, or mood, but that is not what Payne envisioned.”)

(footnote omitted).

121. See Whittlesey v. State, 665 A.2d 223 (Md. 1995); see also People v. Vines, 251 P.3d

943 (Cal. 2011); Holland, supra note 89, at 168 (“[L]istening to a deceased musician playing an

instrument may demonstrate personhood in a way a photo cannot . . . .”).


consisting of a victim displaying a musical talent, however, should be

admissible.

6. Barring Editing Effects

In People v. Kelly, California’s Supreme Court discouraged the use of

“video techniques” to edit pictures or videos presented as victim impact

evidence.122 Two years later, California’s Supreme Court again suggested that

victim impact evidence should not “contain staged or contrived elements” or

“visual techniques designed to generate emotion.”123 In People v. Garcia,

California’s Supreme Court drew attention to an editing effect that made audio

of the victim’s wedding vow “until death do us part” echo repeatedly.124

Similarly, the video featured “repeated flashbacks to scenes from [the victims’]

wedding.”125 The court ultimately ruled that the video was admissible, but

noted the echo effect was “more dramatic than factual.”126 Legal scholars have

also expressed concerns that the ability to add slick effects to slideshows and

videos will bias juries against the defendant.127 This concern arises from the

fact that “[c]apital sentencing trials are not theatrical productions.”128 It is

recommended, therefore, that states require victim impact evidence involving

photographs to display static photographs one after the other without special

transition effects or other technological modifications. Videos should likewise

be devoid of any editing beyond cutting the length down to an appropriately

brief runtime.

7. Mandatory Screenings of Victim Impact Evidence

In State v. Burns, Arizona’s Supreme Court called for trial judges to

review all proposed victim impact evidence in order to determine if it was

122. See People v. Kelly, 171 P.3d 548, 571 (Cal. 2007) (“Nonfactual dramatization of the

evidence in a videotape—in the sense of making a presentation in a dramatic manner—adds

irrelevant factors to the videotape. . . . Trial courts must not permit irrelevant background music or

video techniques that enhance the emotion of the factual presentation.”).

123. People v. Dykes, 209 P.3d 1, 48 (Cal. 2009).

124. People v. Garcia 258 P.3d 751, 782 (Cal. 2011).

125. Id. at 783.

126. Id. at 784.

127. See Holland, supra note 89, at 176–77 (“[I]nside a video-editing suite, an editor can

apply a raft of techniques and special effects to these amateur images that amplify or minimize their

action, mood, tone, and emotion, or express a certain aesthetic point of view. Ordering and

juxtaposing images, adjusting their speed, applying dramatic lighting shifts and camera zooms,

employing music or silence, and even subliminal images are just some of the scores of mechanical

and creative devices that can imbue one frame of film with multiple layers of effects. Imperceptibly

slowing the pace of a video may coax the audience to linger on elements of a victim’s life that may

influence the sentencing decision. Tinting the color of a shot could endear a decedent and his or her

family to a jury, or heighten feelings of compassion and sadness. Subtle audio touches, such as a

few strings of a lullaby or funeral bagpipes, could be applied to a shot to play upon jurors’

emotions.”) (footnotes omitted).

128. Harden, supra note 3, at 877.


admissible.129 California’s Supreme Court similarly urged trial judges to

closely scrutinize victim impact evidence for anything that might bias jurors

against the defendant.130 Georgia’s Supreme Court explicitly required all trial

judges to preview victim impact evidence before it could be admitted in capital

trials.131 Several legal scholars have also called for trial judges to review victim

impact evidence prior to admission.132 As a result, it is recommended that states

require trial judges to hold pre-admissibility hearings in order to determine

whether victim impact evidence adheres to the appropriate guidelines for

admissibility.

129. See State v. Burns, 344 P.3d 303, 332 (Ariz. 2015) (“The trial court should take an

active role in pre-screening the nature and scope of victim impact evidence to ensure it does not

‘cross the line.’”).

130. See People v. Prince 156 P.3d 1015, 1093 (Cal. 2007) (“Courts must exercise great

caution in permitting the prosecution to present victim-impact evidence in the form of a lengthy

videotaped or filmed tribute to the victim. Particularly if the presentation lasts beyond a few

moments, or emphasizes the childhood of an adult victim, or is accompanied by stirring music, the

medium itself may assist in creating an emotional impact upon the jury that goes beyond what the

jury might experience by viewing still photographs of the victim or listening to the victim’s

bereaved parents.”).

131. See Livingston v. State, 444 S.E.2d 748, 752 (Ga. 1994) (“To help ensure that victim

impact evidence does not result in the arbitrary imposition of the death penalty, we hold that the

trial court must hear and rule prior to trial on the admissibility of victim impact evidence sought to

be offered. This will, of course, necessitate that the state notify the defendant of victim impact

evidence which it intends to offer, and will require the trial court to notify the defendant of the

questions, if any, it intends to ask of the state’s prospective witnesses at least ten days prior to trial.

At the conclusion of the guilt-innocence phase of the trial, the trial court may reconsider any pre-

trial decision regarding the admissibility of victim impact evidence.”).

132. See Schroeder, supra note 3, at 499 (“[W]hen it comes to sentencing judgments by

juries, it is the courts themselves that could have the greatest impact on reducing emotional

judgments by limiting VIS in scope and amount . . . . Courts could additionally take on the

responsibility of privately viewing all evidence offered to decide whether admission would prevent

a fundamentally fair trial.”); see also Harden, supra note 3, at 863 (“[C]ourts should, at a minimum,

very closely analyze [a victim impact] video for emotional effect . . . .”); Austin, supra note 3, at

1015 (“Courts have greater power to control the level of emotion in victim impact evidence through

pre-admissibility hearings than through instantaneous rulings on live testimony. Although a few

states require that the prosecution give notice of its intent to introduce victim impact evidence in

every case, defense counsel should certainly be given advance notice of and access to victim impact

videos or photo slide shows. Defense counsel should be allowed to inquire as to whether the slide

show or video was compiled by the victim’s survivors or by a professional, and if a professional

was involved, who directed or shaped the message.”) (footnote omitted); Holland, supra note 89, at

193 (“Judges should review victim impact videos and decide whether they may be considered at

sentencing before they are shown to juries, not during the sentencing proceeding.”).


8. Jury Instructions on Victim Impact Evidence

Georgia,133 Oklahoma,134 New Jersey,135 and Pennsylvania136 all

recommend that trial judges present the jury with instructions explaining what

133. See Turner v. State, 486 S.E.2d 839, 842–43 (Ga. 1997) (“[I]n future cases in which

victim impact evidence is given in the sentencing phase of a death penalty or life without parole

case, the trial court should instruct the jury regarding the purpose of victim impact evidence. For

example, the trial court might charge: The prosecution has introduced what is known as victim

impact evidence. Victim impact evidence is not the same as evidence of a statutory aggravating

circumstance. Introduction of victim impact evidence does not relieve the state of its burden to prove

beyond a reasonable doubt the existence of a statutory aggravating circumstance. This evidence is

simply another method of informing you about the harm caused by the crime in question. To the

extent that you find that this evidence reflects on the defendant’s culpability you may consider it,

but you may not use it as a substitute for proof beyond a reasonable doubt of the existence of a

statutory aggravating circumstance.”).

134. See Cargle v. State, 909 P.2d 806, 828–29 (Okla. Crim. App. 1995) (“To further assist

the jury in using victim impact evidence, we hereby promulgate the following instruction, to be

used in all future capital murder cases in which victim impact evidence is presented: The

prosecution has introduced what is known as victim impact evidence. This evidence has been

introduced to show the financial, emotional, psychological, or physical effects of the victim’s death

on the members of the victim’s immediate family. It is intended to remind you as the sentencer that

just as the defendant should be considered as an individual, so too the victim is an individual whose

death may represent a unique loss to society and the family. This evidence is simply another method

of informing you about the specific harm caused by the crime in question. You may consider this

evidence in determining an appropriate punishment. However, your consideration must be limited

to a moral inquiry into the culpability of the defendant, not an emotional response to the evidence.

As it relates to the death penalty: Victim impact evidence is not the same as an aggravating

circumstance. Proof of an adverse impact on the victim’s family is not proof of an aggravating

circumstance. Introduction of this victim impact evidence in no way relieves the State of its burden

to prove beyond a reasonable doubt at least one aggravating circumstance which has been alleged.

You may consider this victim impact evidence in determining the appropriateness of the death

penalty only if you first find that the existence of one or more aggravating circumstance has been

proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and

find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating

circumstances. As it relates to the other sentencing options: You may consider this victim impact

evidence in determining the appropriate punishment as warranted under the law and facts in the

case.”).

135. See State v. Hightower, 680 A.2d 649, 661 (N.J. 1996) (“Allowing victim impact

information to be placed before the jury without proper limiting instructions has the clear capacity

to taint the integrity of the jury’s decision on whether to impose death.”).

136. See Commonwealth v. Means, 773 A.2d 143, 158–59 (Pa. 2001) (“The prosecution has

introduced what is known as victim impact evidence. Victim impact evidence is not evidence of a

statutory aggravating circumstance and it cannot be a reason by itself to impose the death penalty.

The introduction of victim impact evidence does not in any way relieve the Commonwealth of its

burden to prove beyond a reasonable doubt at least one aggravating circumstance. You may consider

this victim impact evidence in determining the appropriateness of the death penalty only if you first

find that the existence of one or more aggravating circumstances has been proven beyond a

reasonable doubt independent from the victim impact evidence, and if one or more jurors has found

that one or more mitigating circumstances have been established by a preponderance of the

evidence. Victim impact evidence is simply another method of informing you about the nature and


victim impact evidence is and how it should be used. Based on this, it is

recommended that states require trial judges to inform juries about the purpose

of victim impact evidence using the language adopted by Pennsylvania because

it appears the easiest for a layperson to understand.137

B. A Model State Statute for Victim Impact Evidence

In the absence of guidance from the U.S. Supreme Court on the issues

addressed above, this Article proposes model language that states can use to

ensure that the victim impact evidence admitted in capital trials does not

unfairly bias jurors against the defendant.138 The proposed language can also

serve as a model for courts to adopt in the event that legislatures fail to act.

Table 3. Model Language to Guide States on Aspects of Victim Impact Evidence Left

Unaddressed by the U.S. Supreme Court

Issues to Address Recommended Statute Text

(1) Limited Number of

Photographs;

(2) Limited Runtime of Videos

The total number of photographs presented as victim impact evidence

must not exceed ten. This includes photographs presented in a

slideshow format or as part of a victim impact video. The total amount of video footage presented as victim impact evidence must not exceed

five minutes in runtime, regardless of whether it is a single video or

several shorter video clips.

(1) Barring Childhood

Depictions of Adult Victims;

(2) Barring Depictions

of Funerals and

Tombstones

All photographs, video, and audio of the victim presented as victim

impact evidence must demonstrate the victim as they were five calendar years or less before the commission of the offense(s) being tried at the

trial where the victim impact evidence is to be admitted. Depictions of aspects of the victim’s funeral, memorial, gravesite, or tombstone are

not admissible as victim impact evidence in any format and under any

circumstances.

Barring Background

Music

Music is inadmissible as victim impact evidence unless: (1) the music

was inadvertently captured when originally recording a video of the victim and cannot be removed without also removing dialogue between

the subjects of the video; or (2)the music is being performed by the

victim as a display of their musical talent.

Barring Editing

Effects

Photographs presented in a victim impact slideshow should be static, without special transition effects between photographs. Victim impact

photographs and videos should not be color-corrected, involve post-

recording zooming in or out on the images, or have any type of sound effect added. Victim impact videos should be played at normal speed,

without being sped up or slowed down. Victim impact photographs,

videos, and audio should be factual and as faithful to their original

circumstances of the crime in question. You may consider this evidence in determining an

appropriate punishment. However, the law does not deem the life of one victim more valuable than

another; rather, victim impact evidence shows that the victim, like the defendant, is a unique

individual. Your consideration must be limited to a rational inquiry into the culpability of the

defendant, not an emotional response to the evidence. The sentence you impose must be in

accordance with the law as I instruct you and not based on sympathy, prejudice, emotion or public

opinion and not based solely on victim impact.”).

137. See id.



conditions as possible, not embellished through editing software to dramatize their presentation.

Mandatory Screening of Victim Impact

Evidence

Admissibility

Before any victim impact evidence can be admitted into court, the trial judge must hold a private pre-admissibility hearing to determine if the

proposed victim impact evidence adheres to the guidelines outlined

above.

Jury Instructions on Victim Impact

Evidence*

Prior to the introduction of any victim impact evidence in court, the trial judge must instruct jurors that:

“The prosecution has introduced what is known as victim impact

evidence. Victim impact evidence is not evidence of a statutory

aggravating circumstance and it cannot be a reason by itself to impose

the death penalty. The introduction of victim impact evidence does not

in any way relieve the prosecution of its burden to prove beyond a

reasonable doubt at least one aggravating circumstance. You may consider this victim impact evidence in determining the appropriateness

of the death penalty only if you first find that the existence of one or

more aggravating circumstances has been proven beyond a reasonable doubt independent from the victim impact evidence, and if one or more

jurors has found that one or more mitigating circumstances have been

established by a preponderance of the evidence. Victim impact evidence is simply another method of informing you about the nature

and circumstances of the crime in question. You may consider this

evidence in determining an appropriate punishment. However, the law does not deem the life of one victim more valuable than another; rather,

victim impact evidence shows that the victim, like the defendant, is a

unique individual. Your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response

to the evidence. The sentence you impose must be in accordance with

the law as I instruct you and not based on sympathy, prejudice, emotion or public opinion and not based solely on victim impact”

*Adopted from Commonwealth of Pennsylvania v. Means.139

CONCLUSION

In the years since Payne, the U.S. Supreme Court has neglected to provide

further clarification on the types and extent of victim impact evidence that is

admissible in capital trials.140 Absent guidance from the U.S. Supreme Court,

state courts have been forced to reach their own conclusions. This approach has

resulted in some conflicting rulings across states.141 Thus, this Article proposed

a model statute that states can enact. States seeking to regulate the admissibility

of victim impact evidence are recommended to limit the number of photographs

to ten and the runtime of videos to five minutes. States should additionally

prohibit depictions of adult victims as children, and all imagery of the victim’s

funeral and gravesite. Slideshows and videos should not contain background

music or include editing effects. Trial judges should hold pre-admissibility

hearings to determine whether victim impact evidence is likely to unfairly bias

139. See Means, 773 A.2d at 158–59.

140. See Blume, supra note 4.

141. For example, Arizona, Arkansas, California, Georgia, Idaho, Louisiana, Maryland,

Missouri, New Hampshire, New Mexico, New York, Ohio, South Carolina, Wisconsin, and federal

courts have all found victim impact videos admissible on at least one occasion. In contrast,

Nebraska, New Jersey, and Texas have excluded victim impact videos.


the jury. Finally, trial judges should issue jury instructions explaining what

victim impact evidence is and how it should be used. In conclusion, the rapid

growth in technology since Payne has hastened the need for the U.S. Supreme

Court and state legislatures to identify specific criteria outlining the types of

victim impact evidence considered admissible under various circumstances.

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